Excerpt:indian succession act (xxxix of 1935), sections 212, 213, 214-suit on mortgage-mortgagee's representatives-probate or letters of administration.;the defendants borrowed money from three persons, who were jews, on the security of the defendants' property. one of the mortgagees died; his heirs and the two remaining mortgagees sued to recover their money by sale of the mortgaged property, and for a personal decree for the balance. an objection having been raised that the heirs of the deceased mortgagee could not sue in absence of a proper representation, the trial court held that they could, under section 214 of the indian succession act, maintain the suit so far as the sale of the mortgaged property was concerned. on reference:-;held, that the representatives of the deceased mortgagee..........mortgagees and certain persons who are described as the heirs and legal representatives of the deceased mortgagee are plaintiffs and the mortgagors are defendants.2. two technical points have been taken. the first is that the amendment to which i have referred was not justified because it entirely altered the character of the suit. but there is, in my opinion, nothing in that objection. the suit was plainly wrongly constituted in the first instance, and, i think, the amendment was necessary and proper.3. then the next objection is that the plaintiffs nos. 3 to 6, who are alleged to be and who sue as heirs and legal representatives of the deceased mortgagee, are not competent to sue unless they either obtain probate of his will if he left one, or letters of administration to his.....

Judgment:

John Beaumont, C.J.

1. This is a reference from the Judicial Assistant to the Resident, Aden. Originally the suit was brought by one of three original mortgagees against the other two mortgagees or their alleged representatives and the mortgagors, but the plaint was subsequently amended so as to make all the mortgagees plaintiffs and the mortgagors defendants. The amended plaint asks for payment of the sum due on the mortgage or in default sale of the mortgaged property, and, secondly, in case the proceeds of the sale are found to be insufficient for payment of the amount due to the plaintiff's, then that liberty be reserved to the plaintiffs to apply for a decree for the balance. The mortgage on which the plaintiffs rely is dated June (2), 1926. By that mortgage the mortgagors acknowledged to have received from three named persons who are all Jewish inhabitants of Aden the sum of Rs.26,900 as follows: from the first mortgagee Ahronee Shemail Rs.13,000, from the second mortgagee Menahim Yousef Rs.5,500 and from the third mortgagee Menahim Banin Shiley Rs.8,400. Then they agree to repay the aforesaid sum with interest and then the mortgage proceeds:-'If we fail to pay interest for six successive months the said mortgagees are at liberty to sue us for the principal sum and interest without regard to the time fixed for repayment of the principal sum.' Then the document goes on:-'And in security for the due payment of the above sum with interest at the abovementioned rate up to the date of payment we hereby mortgage without possession our houses or buildings' therein described. Then later on it provides:-'In default of the due payment of the above sum together with interest which may be due, we agree that our said houses be sold by public auction' and then the mortgagees are to be paid off out of the proceeds and the mortgagors bind themselves to pay the deficiency. The result of that document seems to be that the mortgagors agree to pay the whole principal sum to the three mortgagees, but the three mortgagees are tenants in common of that sum in unequal shares in the proportions in which they advanced it. Then there is what appears to me to be an equitable charge on the property by way of security. Between the date of the mortgage and the date when this suit was commenced, that is, in December 1929-one of the original mortgagees died, and as the suit is now constituted the surviving mortgagees and certain persons who are described as the heirs and legal representatives of the deceased mortgagee are plaintiffs and the mortgagors are defendants.

2. Two technical points have been taken. The first is that the amendment to which I have referred was not justified because it entirely altered the character of the suit. But there is, in my opinion, nothing in that objection. The suit was plainly wrongly constituted in the first instance, and, I think, the amendment was necessary and proper.

3. Then the next objection is that the plaintiffs Nos. 3 to 6, who are alleged to be and who sue as heirs and legal representatives of the deceased mortgagee, are not competent to sue unless they either obtain probate of his will if he left one, or letters of administration to his estate if he died intestate. The learned Judicial Assistant was of opinion that it was not necessary for any representation to be taken out in so far as the relief claimed was confined to enforcing the mortgage and not recovering a personal judgment against the defendants, and he relied on certain cases which deal with the effect of Section 214 of the Indian Succession Act. But in my opinion if the representatives of the deceased mortgagee are necessary parties at all, then the case is governed by Section 212 or 213, and not by Section 214, of the Indian Succession Act. If the deceased mortgagee left no will then it seems to me the case is governed by Section 212 which provides that no right to any part of the property of a person who has died intestate can be established in any Court of justice unless letters of administration have been first granted by a Court of competent jurisdiction, and then Section 213 makes corresponding provisions by requiring probate to be obtained to the estate of a person who dies testate. Now in the case of this mortgage, inasmuch as the mortgagees were tenants in common of the mortgage money, it seems to me that the three mortgagees are necessary parties to enforce the mortgage whether by way of sale or by way of a personal judgment against the mortgagors, and that being so I think the case falls within Section 212 or Section 213 and that the plaintiffs Nos. 3 to 6 are not competent to sue unless they obtain legal representation to the deceased mortgagee. If the deceased mortgagee left a will, then I should think the defect can be cared by plaintiffs Nos. 3 to 6 taking out probate and then proceeding with their action seeing that their title arises under the will and the only necessity for obtaining probate is to enable them to prove the will in the only manner which the Court recognises. If, on the other hand, there was no will and plaintiffs Nos. 3 to 6 sue as administrators, then it seems to me that it is not possible to cure the defect by any form of amendment because until the administrators obtain letters of administration they have not got any title which enables them to sue: see Meyappa Chetty v. Supramanian Chetty (1916) L.R. 43 IndAp 113, 18 Bom. L.R. 642 and Sethna v. Hemingway ilr (1914) 38 Bom. 618, 16 Bom. L.R. 534. That being so, the case must go back to the Judicial Assistant with this expression of our opinion.